BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                  SB 2061|
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                                    CONSENT


          Bill No:  SB 2061
          Author:   Morrow (R)
          Amended:  4/29/02
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  7-0, 5/7/02
          AYES:  Escutia, Ackerman, Haynes, Kuehl, O'Connell, Peace,  
            Sher


           SUBJECT  :    Privilege:  electronic communications

           SOURCE  :     California Law Revision Commission


           DIGEST  :    This bill provides that (1) a privileged  
          communication does not lose its privileged status simply  
          because it is transmitted electronically, and (2) the  
          statutory presumption of confidentiality and statutory  
          waiver requirements apply to newly created privileges.

           ANALYSIS  :    Existing law provides that a lawyer-client  
          communication is not deemed lacking in confidentiality  
          solely because it was transmitted by facsimile, cellular  
          telephone, or other electronic means.

          This bill would delete this provision, and instead would  
          provide that a communication between parties to any  
          privileged relationship does not lose its privileged  
          character for the sole reason that it is communicated by  
          electronic means or because persons involved in the  
          delivery, facilitation, or storage of electronic  
          communication may have access to the content of the  
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          communication.

          This bill would define "electronic" as having the meaning  
          provided in Section 1633.2 of the Civil Code (which is  
          "relating to technology having electrical, digital,  
          magnetic, wireless, optical, electromagnetic, or similar  
          capabilities").

          Existing law provides that communications made in the  
          context of specified relationships (husband-wife,  
          lawyer-client, physician-patient, clergy member-penitent,  
          sexual assault victim-counselor) are privileged, entitling  
          the holder of the privilege to refuse to disclose, and to  
          prevent another from disclosing, the communication.

          Existing law further provides that the privilege is waived  
          if the holder of the privilege, without coercion, has  
          disclosed or consented to the disclosure of all or a  
          significant part of the communication at issue, or fails to  
          claim the privilege in any proceeding in which the holder  
          has the legal standing and opportunity to claim it.

          Existing law further provides that the privilege is not  
          waived when the disclosure is reasonably necessary for the  
          accomplishment of the purpose for which the physician,  
          psychotherapist, lawyer, or sexual assault counselor was  
          consulted.

          Existing law recently has extended the right to claim a  
          privilege against disclosure to communications between  
          domestic violence victims and counselors.

          This bill would add the domestic violence victim-counselor  
          privilege to those listed in Section 912, governing waiver  
          of the privilege. 

          Existing law provides that whenever a privilege is claimed  
          on the ground that the communication at issue was made in  
          confidence in the course of the husband-wife,  
          lawyer-client, physician-patient, psychotherapist-patient,  
          or clergyman-penitent relationship, the communication is  
          presumed to be confidential and the opponent of the claim  
          of privilege has the burden of proof to establish that  
          communication was not confidential.







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          This bill would provide that the presumption of  
          confidentiality also extends to communications claimed  
          under the sexual assault victim-counselor and domestic  
          violence victim-counselor relationship.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  5/9/02)

          California Law Revision Commission (source)

           ARGUMENTS IN SUPPORT  :    Current law addresses the  
          electronic transmission of privileged communications only  
          in the context of the lawyer-client relationship.  Section  
          952 of the Evidence Code provides that a lawyer-client  
          communication "is not deemed lacking in confidentiality  
          solely because the communication is transmitted by  
          facsimile, cellular telephone, or other electronic means  
          between the client and his or her lawyer."

          The sponsor notes that the narrow focus of this provision  
          may be read to deny the confidentiality of other privileged  
          communications made by electronic means.  Further, the  
          provision's reference to specified technologies is overly  
          specific, easily outdated, and makes no reference to the  
          fact that electronic storage mechanisms may grant storage  
          providers with access to electronic communications,  
          threatening their privileged character.

          To address this problem, this bill would delete the  
          referenced provision of Section 952 and instead provide  
          that no privileged communication shall lose its privileged  
          character solely because it is communicated by "electronic  
          means" (using the Civil Code's broad and flexible  
          definition of "electronic"), or because persons involved in  
          the delivery or storage of the communication may have  
          access to the communication.  

          The sponsor's review of the Evidence Code sections relating  
          to privileged communications also revealed that some  
          provisions had not been updated to reflect the most  
          recently created privileges between sexual assault and  







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          domestic violence victims and their counselors.  This bill  
          would update those sections to include these newly created  
          privileges.


          RJG:jk  5/9/02   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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